Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/21/26 has been entered.
Response to Arguments
Applicant’s arguments, filed 07/21/26, with respect to the rejection(s) of claim(s) under 35 USC 102 have been fully considered and are not persuasive.
Applicant argues that Bunce does not teach equivalence between a translucent surface and a colored or luminescent surface and that substituting Bunce’s colored/luminescent well plates into Sandler would destroy Sandler’s principle of operation because Sandler images through a transparent plate form underneath. These arguments are not persuasive. First, the rejection does not require that Bunce teach literal “equivalence” of translucence and color/luminescence or that Bunce’s well plate be bodily incorporated into Sandler’s under-plate optical path. The test is whether the claimed invention as a whole would have been obvious.
Secondly, claim 1 requires a predefined sample area that “has a specific color different from the color of the solid particles and/or is a light emitting luminous surface.” The claim does not require imaging through a transparent plate, nor does it require the camera to be on the side of the plate opposite the particles. Sandler already discloses providing particles on a predefined sample area, imaging with a camera connected to a portable computer, extracting particle size/shape information, and a horizontal two dimensional sample area with the camera plane-parallel thereto. Sandler’s particular transparent under-plate embodiment is one way to image a particle sample on a plate; it does not limit what backgrounds a POSITA would have considered for the same imaging goal.
Third, Bunce expressly teaches using a sample plate/sample area with color contrast and/or luminescence in connection with optical imaging/detection of particles on that plate (P.0129, P.0130, P.0145). Bunce further teaches that beads may be colored and that the sample plate may comprise luminescence or fluorescence markers so that a detecting device can determine whether particles are present. The point of those teachings is improved optical distinguishability or particles relative to the sample area- the same problem faced when photographically extracting particle silhouettes/size/shape in Sandler.
It would have been obvious to one of ordinary skill in the art at the time of filing to use Bunce’s colored and/or luminous sample area teachings with Sandler’s particle imaging method in order to maximize contrast between the particles and the background and thereby improve detection of smaller particles and reliability of the extracted size/shape parameters. The combination does not require disabling Sandler’s transparent plate. A POSTIA could image from the particle size against a colored/luminous background or use color/luminescence features of the sample area together with Sandler’s imaging and analysis, consistent with Bunce’s teaching that color and luminescence aid optical particle detection.
With respect to applicants’ arguments and amendments regarding the rejection of claims under 35 USC 112, the claim amendments were successful and most of the rejections are moot. However, with respect to claim 1, the rejection in regards to “horizontal” is maintained. Applicant traverses the rejection arguing that “horizontal” has an ordinary meaning of parallel to the horizon or a baseline, so a two dimensional area that is horizontal is fully defined and the camera orientation as “aligned plane-parallel to the predefined sample area” causes it to be definite. These arguments are not persuasive. The ordinary meaning of “horizontal” is an orientation relative to a reference frame (commonly Earth’s horizon/gravity”. Claim 1 does not recite any structural reference that fixes how the predefined sample area is oriented with respect to that frame, for example relative to gravity or a support surface or housing that establishes “up” and “down”. Absent such a relationship, it remains unclear what metes and bounds “horizontal” adds beyond a two dimensional sample area and whether orientations that are horizontal only after the apparatus is rotated or tilted meet the claim. Merely restating that a non-horizontal orientation would be contrary to the word “horizontal” restates the term and does not supply the missing relationship required for a POSITA to determine the required orientation. Secondly, the camera limitation defines only the relative orientation of the camera to the sample area. Plane-parallel alignment is satisfied whether ethe sample area is level with respect to Earth, a vertical, or an arbitrary tilt, given that the camera remains parallel to that area. That relative constraint does not cure the indefiniteness of “horizontal” as a property of the sample area itself.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6, 8-17, 19-24 and 34 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to claim 1, the limitation “sample area which is horizontal” is indefinite. Without a structural or environmental relationship to the rest of the claimed structure (for example, relative to gravity, Earth, a support, or other recited element that establishes reference orientation), it is unclear how the “horizontal” alignment relates to the rest of the claimed limitations. The further limitation that “the camera is aligned plane-parallel to the predefined sample area” constrains only the camera relative to the sample area and does not supply a reference frame that makes “horizontal” definite. Correction is required.
With respect to claim 14, “determining a standard deviation of the least one particle size parameter” is unclear as to what the parameter is compared to since a standard deviation is a change. The standard deviation may be with respect to the two images, over time, compared to a reference or threshold, or some other comparison data. Clarification is required.
The balance of claims are likewise rejected for failing to correct the deficiencies in the above rejected claims upon which they depend.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 22, 23, 24, 27, 34, and 35 rejected under 35 U.S.C. 103 as being unpatentable over Sandler et al. U.S. Patent #7,733,485 in view of Bunce et al. U.S. Publication 2011/0027914.
With respect to claim 1 and 27, Sandler et al. discloses a measuring system for measuring a granular sample comprising:
Providing a sample of solid particles to be analyzed in a predefined sample area (Figure 1 and Figure 7, sample of solid particles = powder sample 1, predefined sample area = plate 2 or sample container 30, Col.4, l 43-45, Step A)
Taking at least one digital image of the sample of solid particles with a camera of a mobile computer device or a camera connected to a mobile device (Figure 1 and Figure 7, camera = 5, Step B, Col.1, l 60-63, Col.4, l 48-53, wherein the camera is connected to a portable computer = camera connected to a mobile device)
Performing an imaging particle analysis of the at least one digital image for extracting at least one particle size parameter or at least one particle shape parameter of the population of particles identified in the at least one digital image (Col.5, l 15-27, Col.2, l 4-22)
Making available at least one particle size parameter or at least one particle shape parameter via an interface via a machine interface or a data storage medium (Col.4, l 48-53, inherent that the calculations are saved somewhere within the computer at least temporarily = data storage medium)
Wherein the predefined sample area is a two dimensional sample area which is horizontal (Col.4, l 54-56)
The camera is aligned plane-parallel to the predefined sample area (Figure 1, camera =5, surface =2)
The predefined sample area is translucent, different from the color of the solid particles (Col.3, l 8-10)
However, Sandler fails to disclose the predefined sample area has a specific color different from the color of the solid particles and/or the predefined sample area is a light emitting luminous surface.
Bunce et al. disclose a sample plate system and method comprising:
Providing a sample of solid particles to be analyzed in a predefined sample area (P.0127)
Taking at least one digital image of the sample of solid particles with a camera (P.0129)
Performing an imaging particle analysis of the at least one digital image for extracting particles in the at least one digital image (P.0129)
Wherein the predefined sample area has a specific color different from the color of the solid particles or the predefined sample area is a light emitting luminous surface (P.0129, P.0130, P.0145)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a sample area having a specific color different from the particles and/or a light emitting luminous surface, as taught by Bunce, in the method/system of Sandler, in order to maximize contrast between the particles and the sample area and thereby improve sensitivity and reliability of the imaging particle analysis. Bunce teaches that color and luminescence of the sample environment are useful for optical detection of particles on a sample plate. Selecting among known background options (transparent, colored, luminous) to optimize photographic contrast is within the skill of the art and yields the predictable result of clearer particle segmentation. Claim 1 does not require under plate transmission imaging; accordingly the combination is a not a bodily incorporation that must preserve Sandler’s transparent under plate path.
It should be noted that for claim 27 drawn to instructions on a computer readable medium, the limitations regarding the physical nature of the predefined sample area are not limiting of the non-transitory computer-readable medium claim to the extent that the recited instructions are not tied to a particular physical sample structure (See MPEP 2115). Nonetheless, the claim is also obvious over Sandler in view of Bunce for the same reasons as claim 1.
With respect to claim 2, 3, 4, 8, 12, 13, 14, 21, 22, 23, and 24, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. In addition, Sandler discloses:
2- Wherein the mobile computer device comprises a human interface device (Figure 7, portable computer 70 has a keyboard = human interface device)
3- The mobile computer device is selected from a portable computer (Col. 4, l 51-53)
4- the camera is configured to take images in the visible spectrum (Col.3, l 31-33, wherein CCDs are configured for visible light, among other wavelengths, Col.5, l 3-5, conventional camera = inherently visible spectrum)
8- the particles in the sample are aggregates (Col.2, l 39-41, wherein aggregate is defined as a mix of materials = multi-component samples)
12- wherein the at least one particle size parameter extracted comprises the particle size distribution of the population of particles identified in the at least one digital image (abstract, Col.5, l 19-28, grain-size distribution)
13- generating an outline image for each of the at least one digital image and making the outline image available via a machine interface (Col.5, l 15-20, wherein gray-tone vector = outline)
14- the at least one digital image is at least two digital images and performing the imaging particle analysis for each of the digital images and by taking into account each of the at least one particle size parameter individually extracted from the at least two images, determining a standard deviation of the at least one particle size parameter(Col.2, l 4-17, wherein each image (screen) has percentage mass fraction determined = particle size parameter, deviation = grain size distribution)
21- assigning at least one attribute to the sample of solid particles (Col.5, l 10-14, wherein attribute = segregation or coarseness)
22- the method is at least partly performed on the mobile computer device (Col.4, l 46-52)
23- the image analysis or the making available is conducted on a separate computer device which is different from the mobile computer device (Col.4, l 48-52, Figure 7, wherein the computer 70 is separate from the camera 5)
24- the image is stored on an external computer device (Col.4, l 48-51, image stored on capture card or USB)
With respect to claim 5 and 6, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the resolution of the camera and that the sample area comprises a reference scale and/or has a known size.
It would have been obvious to one of ordinary skill in the art before the effective filing to select a resolution of at least 2 megapixels since it has been held that selecting an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215. In this case, camera resolution controls the smallest particle scale that can be resolved and is balanced against noise, sensitivity, and cost.
It would have been obvious to one of ordinary skill in the art before the effective filing date to have a known sample area size since this is essential for selecting the resolution of the camera and to calculate the size distribution. Knowing the area that the sample covers or having a reference scale is essential to give meaning and scale to the image.
With respect to claim 9, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the camera is aligned so that a share of the sample area in the image is maximized.
It would have been obvious to one of ordinary skill in the art before the effective filing date to align the camera to maximize the sample area in the image to optimize image efficacy and minimize unused pixels/noise. Framing the subject to fill the frame is common sense.
With respect to claim 10, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose a minimum detectable particle size is calculated by taking into account resolution, sample size in image, and length of sample area.
It would have been obvious to one of ordinary skill in the art before the effective filing date that minimum detectable particle size follows form basic image-analysis geometry (resolution x field of view/sample length). A POSTIA would calculate that limit to understand inspection capabilities.
With respect to claim 11 and 15, Sandler discloses all of the limitations as applied to claims 10 and 14 above. However, Sandler fails to disclose generating an warning to a user if the minimum detectable particle size or the standard deviation within image comparisons is beyond a threshold.
It would have been obvious to one of ordinary skill in the art before the effective filing to warn the user when a calculated detection limit or an inter-image standard deviation falls outside an expected threshold to avoid erroneous measurements. Threshold based alerts are a routine automation of early error detection.
With respect to claim 20, Sandler in view of Bunce discloses all of delimitations as applied to claim 1 above. In addition, Sandler discloses:
The at least one particle size parameter is selected from the particle size distribution of the population of particles identified in the at least one digital image or at least on statistical parameter selected from the group of average particle size, mean diameter, and/or Dx-value with x= 1-100 (see claim 12 above, Col.5, l 19-28)
It would have been obvious to one of ordinary skill in the art before effective filing to extract shape parameters for particles of a predetermined size only in order to correlate shape with size class- a routine refinement once size and shape are both extracted from the same image population.
With respect to claims 34 and 35, Sandler in view of Bunce discloses all of the limitations as applied to claims 1 and 27 above. Sandler additionally discloses:
Leveling the sample and images surface information on the plate (Col.2, l 44-56, Col.3, l 5-10)
It would have been obvious to one of ordinary skill in the art at the time of effective filing to arrange the solid particles in the predefined sample area in a single layer to reduce overlap and improve boundary detection for size/shape analysis. Alternatively, the particles contacting the imaging surface of Sandler’s plate constitute a single layer at the analysis plane already.
Claims 16, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sandler U.S. Patent #7,733,485 in view of Bunce U.S. Publication 2011/0027914 and further in view of Laitinen et al. “Does a powder surface contain all necessary information for particle size distribution analysis?”.
With respect to claim 16, 17, and 19, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However Sandler fails to disclose the at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size, mean diameter, Dx value and/or fineness modulus. Additionally, Sandler fails to disclose the at least one particle size parameter comprises a deviation form a predefined nominal value and the at least one particle shape parameter extracted comprises roundness, sphericity, aspect ratio, roughness, solidity, flakiness index, shape index, percentage of crushed and broken surfaces, and/or angularity.
Laitinen discloses image analysis for particle size distribution comprising:
The at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size or mean diameter (Table 1, Page 222, bottom of first column into top of second column)
The at least one particle size parameter extracted comprises a deviation from a predefined nominal value or distribution (Table 1, Page 22, bottom of first column into top of second column)
The at least one particle shape parameter extracted comprises roughness (Page 217, second column, “bring up issues concerning comparisons of different sizing methods, the number of analyzed particles and elements in shape and texture quantification of particles”)
It would have been obvious to one of ordinary skill in the art before the effective filing date to use Laitinen’s known particle parameters with Sandler’s method because Sandler cites Laitinen-type surface PSD work and both share the goal of grain-size distribution from surface images. Adding average/Dx type statistics, nominal deviation, and shape metrics yields more information from the same capture.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA CAROLE BRYANT whose telephone number is (571)272-9787. The examiner can normally be reached M-F, 12-4 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara Geisel can be reached at 571-272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/REBECCA C BRYANT/ Primary Examiner, Art Unit 2877
Prosecution Insights